A contractor who suffered hearing loss following a practical joke by a company employee has been unsuccessful in his claim.
Site fitter Mr Chell appealed against a decision to dismiss his claim for damages against Tarmac Cement and Lime Ltd, following an incident at its site.
He had been contracted out to Tarmac Cement and Lime’s quarry site. The company had its own fitters but also contracted external workers.
It was reported that there were tensions between the employees and the external contractors as the employees believed their jobs were at risk. Mr Chell had raised the issue with Tarmac Cement and Lime and made them aware of the tensions.
A few weeks later, as a practical joke, an employee brought on-site some pellet targets that exploded when struck. The employee placed some pellets on Mr Chell’s workbench and struck them with a hammer. As a result, Mr Chell suffered a perforated eardrum, hearing loss and tinnitus.
The judge ruled it wasn’t foreseeable that there was a risk of injury to Mr Chell or any external worker from a deliberate employee act of horseplay or malice
In his claim for damages, Mr Chell argued that the employer was vicariously liable for the actions of its employee and that it had breached its duty of care by failing to provide a safe working environment.
In assessing for vicarious liability, the judge applied the test in Lister v Hesley Hall Ltd (2001). This case stated that employers could be vicariously liable for unauthorised, intentional wrongdoings committed by an employee providing there was a connection between the wrongdoings and the work for which they were employed, to deem it within the scope of employment.
Applying that test, the judge ruled that the employee’s actions were not within the field of activities assigned to them by their employer, and so there was no link for vicarious liability.
The judge accepted that the employer was aware of tensions between its employees and contractors, but this had not been serious enough to reasonably suggest that there was a risk of violent acts or physical confrontation. Mr Chell claimed he had asked to be taken off-site but this was rejected, with evidence cited that contradicted this.
The judge ruled that the employer had sufficient health and safety measures in place and it wasn’t foreseeable that there was a risk of injury to Mr Chell or any external worker from a deliberate employee act of horseplay or malice.
On appeal, the judge agreed with this ruling, stating that the vicarious liability test had been correctly applied and all relevant factors considered.
The appeal judge agreed that horseplay, ill-discipline and malice were not matters expected to be to be found in a risk assessment, and the existing health and safety measures were sufficient. They agreed it was expecting too much of an employer to implement a policy or site rules that covered the level of horseplay or the playing of practical jokes, and nothing more could have been reasonably expected.
The judge argued that the fact Mr Chell was found not to have requested to be moved beforehand showed the true level of his concern at the time, which was lower than retrospectively argued. The appeal for damages was dismissed.
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